Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 3) [2010] NSWDC 108

Smart Distribution Services Pty Ltd v General Wholesale Pty Ltd (No 3) [2010] NSWDC 108

The offer was an offer of compromise under the Uniform Civil Procedure Rules because it was expressly made pursuant to rule 20.26 and its costs term did no more than reflect the costs entitlement under the rules. Since the judgment was no less favourable to the plaintiff than the offer and no contrary discretionary argument was advanced if the rules applied, the plaintiff was entitled to indemnity costs from 1 July 2009.

Jurisdiction
Australia
Judgment Date
23 June 2010
Procedural Posture
Civil Costs Application / Post Judgment Determination of Costs Following Judgment for the Plaintiff
Outcome
Plaintiff awarded ordinary costs up to and including 30 June 2009 and indemnity costs from 1 July 2009.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'ucpr Rule 20.26(2)' 'ucpr Rule 42.14' 'calderbank Offer']
['civil Procedure' 'costs'] ['offer of Compromise' 'indemnity Costs' 'ucpr Rule 20.26(2)' 'ucpr Rule 42.14' 'calderbank Offer']

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Procedural Posture

Civil Costs Application / Post Judgment Determination of Costs Following Judgment for the Plaintiff

Legal Issues

  1. 1 ["Whether the plaintiff's offer of compromise was exclusive of costs within the meaning of UCPR rule 20.26(2)." 'Whether the plaintiff was entitled to indemnity costs from the day following the offer of compromise.' 'Whether it was necessary to determine if the offer constituted a Calderbank offer and whether refusal was unreasonable.']

Ratio Decidendi

The offer was an offer of compromise under the Uniform Civil Procedure Rules because it was expressly made pursuant to rule 20.26 and its costs term did no more than reflect the costs entitlement under the rules. Since the judgment was no less favourable to the plaintiff than the offer and no contrary discretionary argument was advanced if the rules applied, the plaintiff was entitled to indemnity costs from 1 July 2009.

Court Disposition

Plaintiff awarded ordinary costs up to and including 30 June 2009 and indemnity costs from 1 July 2009.

Orders

  • ["The defendant pay the plaintiff's costs of proceedings up to and including 30 June 2009 on the ordinary basis as agreed or assessed." "The defendant pay the plaintiff's costs of proceedings from 1 July 2009 on an indemnity basis as agreed or assessed."]